Schultz v. California Department of Corrections and Rehabilitation et al

Filing 55

ORDER DENYING Plaintiff's Request for Discovery Subpoena 54 , signed by Magistrate Judge Michael J. Seng on 7/21/14: Request is DENIED without prejudice. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KENNETH SCHULTZ,

Case No. 1:11-cv-00988-LJO-MJS (PC)

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Plaintiff,

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ORDER DENYING PLAINTIFF’S
REQUEST FOR DISCOVERY
SUBPOENA

v.
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(ECF No. 54)
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STATE OF CALIFORNIA DEPARTMENT
OF CORRECTIONS AND
REHABILTATION, et al.,

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Defendants.
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Plaintiff Kenneth Schultz, a state prisoner incarcerated at Corcoran State Prison

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(“CSP”), is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42

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U.S.C. § 1983. This matter proceeds on a claim of medical indifference against Defendant

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Kim, M.D.

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On June 4, 2014, the Court denied Plaintiff’s motion for a subpoena to depose

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alleged percipient witness, Ms. Lawrence, who had been a CSP medical staff member at

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times relevant to Plaintiff’s claims. Plaintiff was, however, given leave to make a further

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showing in support of his ability to locate Ms. Lawrence and to retain and compensate a

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deposition officer to take written or oral responses and prepare the record.

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Before the Court is Plaintiff’s July 11, 2014 statement in support of subpoena to
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depose Ms. Lawrence.
Plaintiff asserts that on June 10th and June 20th he submitted requests to prison

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staff seeking the full name and employee number of Ms. Lawrence and that he has not yet

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received any response. This alone is not sufficient to show Plaintiff has information that

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would enable the Marshal to serve Ms. Lawrence with a subpoena.

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Plaintiff asserts he has $34.85 in his prison trust account and is willing to make

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payments through his trust account to retain and compensate a deposition officer. See Fed.

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R. Civ. P. 30; Fed. R. Civ. P. 31. This does not show Plaintiff can retain and compensate a

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deposition officer. He apparently has not located an individual willing and able to serve as a

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Rule 28(a) deposition officer and be compensated from periodic prison trust account

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payments. He also has failed to show an ability to pay attendance and mileage fees to a

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Rule 45 non-party witness. Plaintiff’s in forma pauperis status does not entitle him to

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services such as scheduling, conducting and recording the deposition.

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Plaintiff offers to submit his written deposition questions to the Defendant. Plaintiff

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was previously advised such non-party discovery may not be directed to Defendant. (See

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ECF No. 48.)

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Accordingly, for the reasons stated, Plaintiff’s July 11, 2014 statement in support of

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discovery subpoena is deficient. His request for a subpoena to depose Ms. Lawrence (ECF

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No. 54) is DENIED without prejudice on the same grounds as previously stated.

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IT IS SO ORDERED.
Dated:

July 21, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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